Tuesday, February 5, 2008

Legislative fix for DCSE questioned

The train has been on the track for 20 years, but five members of the Senate Courts of Justice Committee didn’t think that was enough of a reason to make sure it stays there.

The issue is the ability of the nonlawyer staff of the Division of Child Support Enforcement to start the process against parents who are delinquent in their child support by signing petitions and motions. The division contends that Virginia Code § 16.1-260 and a 1988 attorney general’s opinion gives those employees the authority to do so.

Last year, a juvenile and domestic relations district judge in Fairfax ruled that Code § 8.01-271.1 requires an attorney to sign such pleadings and vouch that they are well grounded in law and fact. Fearing that the nonlawyer employees could be charged with practicing law without a license, the division is seeking a legislative fix in Senate Bill 788 and House Bill 1382.

McDougle said it would be more efficient in his office if an assistant could sign off on routine paperwork, too. Stolle asked, “Do we have any other law where we authorize nonlawyers to do this sort of thing?” The answer from the committee’s counsel was, “No.”

Stolle said he was unpersuaded that Code § 16.1-260 could be interpreted as the division contends. “I think it’s more likely that the AG’s office issued a bad opinion 20 years go,” he said.

4 comments:

First, if DCSE employees are acting as attorneys, then they can be sued for legal malpractice. That danger is far from slight, because of course they are not attorneys and do not have the legal training necessary to avoid occasionally screwing up someone's legal rights.

Second, because they are not attorneys, the attorney-client privilege and work product privilege cannot apply. Every detail shared with the DCSE employee is discoverable and the document-preparer can be called to testify against the parent or child that he or she "represents."

Third, of course, there is absolutely no reason for any of this. Even if parents or children cannot afford attorneys, there is no reason why DCSE has to sign a petition. DCSE could simply hand a form, in blank or even filled out, to the parent or child to appear pro se. Forms appear on the Courts' official website. Why does DCSE need to prepare petitions, if the forms can be posted on the Court's website on the internet?

Fourth, will DCSE employees have to follow conflict of interest rules? What if a DCSE employee has a personal relationship for or against someone? Are they now obligated -- acting as attorneys -- to comply with the ethical rules of the Virginia State Bar?

Fifth, will DCSE employees be subject to disbarrment if they file false or frivolous petitions?

Sixth, the legislative fix operates in part by making 8.01-271.1 include DCSE employees. That means that those employes can be sanctioned -- personally -- for any failure to investigate whether a position is justified by the facts and the law. Since they are not attorneys, it is difficult to imagine how they can properly investigate whether the petition they sign and file is justified under the law. A reasonable effort to properly investigate that a petition is well-grounded in the law should probably include getting a law degree.

In any event, how many DCSE employees are going to want to be subject to personal liability under 8.01-271.1 -- when any parent or child can simply sign the petition themselves and file it pro se? What is the point of all this?

Seventh, even this legislative fix will not solve the problem. And indeed the problem is so gigantic because the policy is fundamentally absurd. Trying to fix an absurdity requires far more than this proposal.

DCSE employees are practicing law without a license, and the proposal will not fix that. The bill would authorize DCSE employees to merely sign petitions and file them. But we all know that there is a great deal more to the practice of law than that. Long before the fingers start typing, there is legal analysis of a client's position (e.g., determining whether a change of circumstances qualifies under the statute and legal precedents for a modification), legal advice as to when and how to proceed, balancing the raw possibility of taking specific action against other legal rights and concerns. The bill in the GA would only deal with the siging and filing of the petition. It does not authorize all of the giving of legal advice and practice of law that happens before and after that point. What types of income and assets should be considered with regard to both the petitioner and the respondent? What types of expenses are legitimate for child support, and which are luxuries? What qualifies as a change of circumstance? What exactly did the judge mean in a prior order? In the case of multiple breaches on both sides, what is the net effect under the judge's order? May the respondent count in-kind contributions or offsets as having fulfilled child support obligations? When should a child support order be attempted against an out of state spouse? How should the petition be served upon the defendant out-of-state, for an unknown address, etc.? Is the defendant legally competent or is appointment of a committee required?

I don't understand why this was passed? How can DCSE act in a legal capacity without credentials and why isn't anyone looking into this for obvious oversight reasons? It seems to me the focus in on erasing the problem that's gone on ignored for years.

As a former employee of DCSE, i can tell you first hand that the department is a mess. Staff are overworked, poorly trained and stressed. While they may start off with intentions of doing good, ultimately they end up just covering their own rears. Policies and procedures encourage fraud on the part of custodial parents because employees are not required to verify their statements and there is no consequence for them at all if they lie. The department needs a complete overhaul before it's given any additional powers or authority.